Thank you to the VACDL members who submitted comments, many of whom who are quoted in the article! And, of course, special thanks to Doug Ramseur for his continued efforts to push for discovery reform in our Commonwealth.

Prominent DC attorney Justin Dillon (and VACDL Spring Seminar 2018 speaker!) wrote an article for Above the Law, after reading The Daily Press story on David Lee's discovery of "memorandums of understanding" between police, state prosecutors and expert witnesses in child abuse cases.

VACDL is continuing to investigate this matter, so stay tuned...

Justin Dillonis a partner atKaiserDillon PLLCin Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email isjdillon@kaiserdillon.com.

Thank you to David Lee, one of VACDL's Past Presidents, for bringing this issue to our attention. VACDL has indeed filed FOIA requests and the documents received will be posted within the Member's Only section.

The 8-1 decision overruling three lower courts was written by Justice Sonia Sotomayor. Justice Samuel Alito dissented, calling a Virginia police officer's actions reasonable when he walked up a private driveway to confirm that a motorcycle had been stolen.

Ryan Collins was arrested for possessing the stolen motorcycle, which had outrun Virginia police twice in 2013. The high court ruled that same year that police need a warrant to search outside a private home, but automobiles are exempt if a crime is suspected. In Collins' case, the two precedents collided.

"The automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein," Sotomayor ruled.

During oral argument, Chief Justice John Roberts said motor vehicles don't get the same privacy rights as houses because they can be driven away at a moment's notice. To make his point, he cited the famous race car from the 1986 film Ferris Bueller's Day Off — mistakenly recalling it as a Porsche when in fact it was a 1961 Ferrari 250 GT California Spider.

But Roberts joined Sotomayor's opinion Tuesday, leaving only Alito in dissent.

"An ordinary person of common sense would react to the court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life," Alito said, quoting Charles Dickens. "If that is the law, he exclaimed, 'the law is a ass — a idiot.'"

The Supreme Court in recent years has been a firm defender of the Fourth Amendment protection against unreasonable searches and seizures. It has held that police cannot use GPS equipment to track vehicles or search cellphones without a warrant. Earlier this term in a pending case, the justices voiced concerns about government monitoring of suspects by tracking the location of the cellphones.

The Virginia Department of Forensic Sciences will host a series of free courses on DNA for law professionals this Fall in four locations across the state.Representatives from the DFS said they are offering the courses in an effort to better train defense attorneys, prosecutors and judges, so that they might better utilize forensic information at trial.

“Really it’s designed to help the attorneys and judges who have to use and evaluate forensic science testing in their cases to have the background to understand the methods and practices of a particular discipline,” Katya Herndon, the chief deputy director of the DFS, said.

Richmond Circuit Court Judge Bradley Cavedo said the courses also offer a more cost-effective way for defense attorneys to learn about countering DNA evidence.

“We get requests from defense attorneys all the time to appoint a DNA expert so they can get into the science and know what questions to ask in cross examination,” Cavedo said. “With this knowledge and background they can do that and not have to request thousands of dollars.”

It came from Arizona

The idea for the forensics courses for law professionals originated at a conference in Arizona, which leads the nation in forensic science education. A DFS representative brought the idea back to Virginia and pitched it to a group of 35 stakeholders representing public defenders, commonwealth’s attorneys, private defense lawyers and medical examiners. The group expressed overwhelming interest and set to work organizing and planning the program.

The group chose to offer four limited courses on one subject in the program’s first year due to limited resources. “We wanted to start with a pilot project in one discipline,” Herndon said. “It soon became pretty apparent that this was something people were excited about.” As a result of surveys and group discussion, the group landed on DNA as the first topic of study.

The case for DNA

While interest in DNA was not universal, representatives from the group said the topic was a consensus pick based on the lack of current understanding surrounding it.

“DNA is very complicated. Most attorneys don’t have a background in science, so learning about DNA is challenging,” Virginia Association of Criminal Defense Lawyers stakeholder Bryan Jones said. “Going to the lab and being able to learn hands-on with the forensic scientists working in the lab is a great way to better understand the scientific evidence.” Cavedo said that he thought the group chose DNA because it comes up so often in courtrooms. “In the Circuit Court we see DNA cases over and over and over,” Cavedo said. “Everybody agreed, if there’s one thing we can afford to know more about, it’s DNA.”

Since the idea behind the program is to inform law professionals about a breadth of forensic information, organizers say they plan to create lessons on different forensic topics in future years, depending on demand. “The plan was to start training on a single subject in all four labs,” Herndon said. “The hope is that we’ll expand and add subjects down the road.”

For now though, since the program is relying on existing staff to lead the programs, the courses will be limited to DNA.

Other topics

Maria Jankowski, the deputy director of the Indigent Defense Commission said that while majority ruled on the topic choice, she hopes crime scene investigation is considered for future courses. “As a defense attorney, I have the least amount of knowledge in that regard,” Jankowski said. Other noteworthy topics that are being discussed for future programs include firearms forensics, toxicology, drug screening, blood evidence and digital forensic evidence training.

“Everything the DFS lab tests we could do a lesson on,” Chesapeake Commonwealth’s Attorney Nancy Parr said. Parr and other stakeholders expressed interest in having shorter, half-day lessons on multiple topics in the future. “With the legitimacy of science being challenged more and more, it’s important to be educated,” Parr said.

The application process

Herndon and DFS Director Linda Jackson said the programs are going to each be limited to groups of 25 attorneys and judges and that the lessons will take place in eight-hour courses. The programs will be held at DFS labs in Norfolk Sept. 14, Roanoke Oct. 12, Richmond Nov. 2 and Manassas Nov. 9. CLE credit will not be offered, but the courses will be free of charge. “We wanted it to be interactive sessions,” Jackson said. “We’re limiting it to 25 attorneys … for each session, so we have an application/screenings process.”

Herndon said that the group plans to get the application on their website by the beginning of June so that interested parties can apply by the June 22 deadline. For planning purposes, those who are accepted will find out by mid-July. Cavedo said that constituent groups will select participants. “I have a feeling there will be a lot of demand for this, and we’ll be turning away a lot of people,” Cavedo said. As a result, he said he suspects DFS might offer DNA courses again next year. The interest extends to the state Supreme Court, Cavedo said. “Chief Justice [Lemons] has a serious interest in developing education among judges within the technologies of the law,” Cavedo said. “I believe he is very happy with the way this is progressing.”

FROM VACDL: Thank you to Board Members Elliott Bender and Bryan Jones for representing VACDL at the DFS Stakeholder meetings, and for their work in seeing these training sessions come to fruition

The Supreme Court of Virginia is seeking comments on proposed changes to the rules of criminal discovery that have been submitted to the court by the Virginia State Bar Criminal Discovery Reform Task Force. VACDL had a number of members on this Task Force, and their efforts are much appreciated.

The proposed changes affect rules 3A:11 (Discovery and Inspection) and 3A:12 (Subpoena). Click the link below to access the full text of proposed revisions.

Please make every effort to submit a comment from your unique criminal defense practitioner perspective well in advance of the June 1, 2018 deadline. We need to let the Supreme Court of Virginia know how important these changes would be for many practitioners and defendants, and that the revisions, while not perfect, are a step in the right direction. Discovery reform in criminal cases has been long overdue, and there is still quite a way go to toward uniform justice across our Commonwealth.

Earlier in April 2017, VSB President Michael Robinson appointed a 13-member panel, with Virginia Court of Appeals Judge Robert J. Humphreys as chair, to revisit the very contentious issue of criminal discovery reform. VACDL Past President and current Board Member, Doug Ramseur, was selected for the panel. Doug also served on former Chief Justice Kinser's "Special Committee on Criminal Discovery Rules" and was instrumental in the drafting of the committee's report, which was unfortunately not taken up (and basically dismissed) by the Virginia Supreme Court.

We are pleased that 3 other VACDL members are also on the Discovery Reform Task Force: Jim Broccoletti of Norfolk, John Lichentstein of Roanoke, and Ed Riley of Richmond. Our organization, and the criminal defense community, will be well-represented by these long-standing VACDL members!